발전국가와 행정법 – 시론적 고찰 –

This study presents the following three propositions regarding the evolution of state models and their legal implications. First, the regulatory state, as a conceptual framework for the post-welfare state, is not merely a neoliberal pursuit of a minimal state. Instead, we observe an expansion of state regulation and the oversight of private-sector participation. In the German context, the welfare state-rooted in Hobbesian liberalism-has been superseded by the social state (Sozialstaat), based on Kantian liberalism and autonomous citizenship. The recent transition to the guarantee state (Gewährleistungsstaat) parallels the emergence of the regulatory state elsewhere. Just as public services in the welfare state become subject to regulation, all subsistence services (Daseinsvorsorge) in the social state are now subject to a “guarantee.” While the regulatory state emphasizes the authority to regulate, the guarantee state focuses on the responsibility to ensure service provision. This distinction stems from the differing ideological foundations of the welfare and social states, explaining why universal phenomena like co-regulation manifest specifically as regulated self-regulation (Regulierte Selbstregulierung) in Germany. Second, a significant disconnect exists between academic discourse and practical operation in Korea. While the discourse centers on the regulatory state model of developed nations, practical operations remain tethered to the developmental state tradition. Historically, even developed nations functioned as developmental states during their absolutist “police state” eras. Although state intervention diminished during the liberal modern state phase, the developmental context persisted through the welfare state to the current regulatory state. Recently, “neo-statism” has emerged as a counter-current to neoliberalism. However, because developed nations established the rule of law by overcoming paternalism, their current strategies-such as massive investments in AI-are executed within the regulatory state tradition, demanding rigorous jurisprudence. Paradoxically, developmental administrative law is more critical in the regulatory state than in the developmental state itself. As we transition, an urgent response through general administrative law is required. Third, Korea’s unique path-bypassing the liberal modern state stage and failing to fully overcome paternalism-exerts a lasting influence. Consequently, legislation intended to minimize regulation and maximize AI investment (e.g., the Framework Act on Artificial Intelligence) may fail to function as intended when operating under a developmental logic disguised as a regulatory form. To resolve this, we must adopt the dual concepts of “regulation for development” and “development through regulation.” The former describes the adoption of regulatory forms within a developmental state, where regulations often revert to tools for industrial promotion, undermining the rule of law. The latter describes the incorporation of developmental content within a regulatory state, where the strategy shifts toward continuous regulatory innovation. Korea’s stagnation in regulatory reform since democratization stems from this transition: what was once flexible “discipline” has now become rigid “regulation” that demands a level of legal sophistication the current system struggles to provide.